Delhi District Court
State vs . Parhlad on 31 July, 2014
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 113/13)
Unique ID case No. 02404R0222852013
State Vs. Parhlad
FIR No. : 196/13
U/s : 363/366/376 (1), 2 (f) (n) IPC
& u/s 4 and 6 of POCSO Act
P.S. : Mangol Puri
State Vs. Parhlad
S/o Sh. Tara Chand
R/o K223, Mangol Puri,
Delhi.
Date of institution of case 30.07.2013
Date on which, judgment has been reserved 31.07.2014
Date of pronouncement of judgment : 31.07.2014
JUDGMENT:
1. Briefly stated the case of the prosecution is that victim K, aged about 17 years, a student of 12th class, went missing from her house on 19.03.2013. The PW3, Sh. Sita Ram Pant, father of victim K made efforts to search for her and when he could not get a clue about her whereabouts, he reported the matter to the police on 23.03.2013, pursuant to which, the present case was registered and investigations were commenced by PW13 ASI Surender, to whom the case was marked. On 10.06.2013, ASI Surender received information that missing girl and S.C. No. 113/13 : State vs. Parhlad : Page 1 of 25 the accused had been brought to police station by complainant himself. The IO ASI Surender sent the prosecutrix for medical examination under supervision of W/Ct. Manju. In the meantime, further investigations of the case were marked to PW9 WSI Suman Kumar. The PW9 IO SI Suman Kumari arrested the accused in the present case and sent him for medical examination to SGM Hospital. The exhibits collected from the accused as well as the victim S, by the concerned doctors, were seized by the IO. On 11.06.2013, IO got recorded the statement of victim under Section 164 Cr.P.C, wherein the victim stated that she had married the accused with her own free will and consent and that she wanted to stay with the accused. Since, the victim was less than 18 years of age, as per her school certificate, wherein, her date of birth was mentioned as 21.01.1996, the victim was produced before concerned CWC for appropriate orders. The victim S refused to go with her father and was sent to children home at Nirmal Chhaya Complex, where she continued to stay tiil 21.01.2014, when she completed 18 years of age. During the course of investigations, the IO got sent the exhibits of the case to FSL. After completing the investigation, the charges sheet was prepared and filed in the court.
2. After hearing the arguments on the point of charge, charges for the offences punishable under Sections 363/366 IPC and under Sections 5 (l) of The Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as POSCO Act) punishable u/s 6 of POCSO Act were framed against the accused Parhlad. An alternative charge u/s 376 (2) (n) IPC was also framed against the accused. However, accused pleaded not guilty and claimed trial and thereafter, the case was fixed for prosecution evidence.
S.C. No. 113/13 : State vs. Parhlad : Page 2 of 25
3. In order to prove its case, prosecution has examined thirteen witnesses.
4. The PW1, HC Meenakshi Sharma, had recorded the case FIR in the present case. She proved the computerized copy of FIR as Ex. PW1/A.
5. The PW2, Smt. Nawab Kaur is the owner of the house, wherein, accused used to reside as tenant with victim K. This witness initally stated that she did not know anything about this case, but when the facts were put to her during cross examination by ld. Addl. PP, the PW2 Nawab Kaur, stated that accused Parhlad used to reside on the first floor of her house as a tenant with victim K/his wife and that he resided there for about two and a half months and that he used to pay a monthly rent of Rs. 1500/ per month.
6. The PW3, Sh. Sita Ram Pant is the complainant as well as father of the victim K. He deposed that victim K was his first born child and that her date of birth was 21.01.1996. He further deposed that on 30.10.2012, the accused had kidnapped his daughter K and that he had gone to PS, but his complaint was not lodged and that the police produced accused and victim K before him on 31.10.2012 and that since, at that time, victim K was not willing to live with him, she was sent to Nirmal Chhaya, while the accused was released by the police.
The PW3 further deposed that on 09.11.2012, he received a phone call from concerned CWC, pursuant to which, he went to Nirmal Chhaya and met victim K, who apologized to him and stated that she had acted under influence and inducement of accused and assured PW3 that she would not repeat her mistake S.C. No. 113/13 : State vs. Parhlad : Page 3 of 25 again and on this assurance, he brought victim K back to his house and that he also started sending her to school as advised by officials of CWC. The PW3 then deposed that on 19.03.2013, his daughter K left home on the pretext of giving Board Examination, but she did not return back and that after waiting for K for some time, he went to PS, but again no report was lodged by the police and that only on 23.03.2013, a missing report was registered, without mentioning the name of the accused as given by the complainant. The complainant proved his complaint as Ex. PW1/A. A specific court question was asked from the witness, whether he had made any complaint against the concerned police officials for having failed to record his complaint as per his version and in response to this question, the PW3 stated that he had filed complaint with DCP (Vigilance) and Joint CP, Northern Range. He further stated that there was no change in the attitude of the concerned police officials at the PS and that he also contacted the parents of the accused also, but they turned him away after abusing him. The PW3 further stated that 10.06.2013, one of his friends informed him about presence of his daughter and the accused Prahlad at Peeragarhi Metro Station and that accordingly, he went there at about 5:00 PM and on seeing the prosecutrix and the accused, he called the Police at 100 number, on which, the police officials reached there and took all of them to PP Miawali Nagar. He further deposed that thereafter, the concerned IO of PS Mangolpuri was informed by the officials of PP Miawali Nagar and on the said call, PW13 ASI Surender reached there and prepared recovery memo Ex. PW3/X of his daughter. He further deposed about medical examination of his daughter and about arrest and personal search of the accused and proved his arrest memo as Ex.PW3/A and personal search memo as Ex.PW3/B. He further deposed that thereafter, the accused was interrogated by the police, on which, accused made his S.C. No. 113/13 : State vs. Parhlad : Page 4 of 25 disclosure statement also. He further deposed that thereafter, his daughter was produced before the concerned Court, where her statement was recorded and that after that she was produced before CWC and since then, as per his knowledge, his daughter had been residing at Nirmal Chayya.
During crossexamination, the PW3 termed it correct that his daughter was pursuing computer course and that accused belonged to 'Balmiki' caste and he was from a 'Brahmin' caste. The witness showed his lack of knowledge, whether the accused was residing near the place, from where his daughter was pursuing her computer course and whether his daughter knew accused since four years prior to the day, she went missing in 2013. The witness denied that he was was opposed to relations of his daughter with the accused because accused belonged to a lower caste. He further stated that he had mentioned the name of the accused in his previous complaint with the police, however, he volunteered to state that the police deliberately did not record the name of the accused. The witness further showed his lack of knowledge, if accused and his daughter had solemnized marriage in Arya Samaj Mandir. He further stated that he had gone to meet his daughter, while she was staying in Nirmal Chayya and that when his daughter went missing first time, he had brought her from Nirmal Chayya, but when she was recovered after her second episode of missing, he did not bring her from Nirmal Chayya. He further stated that he did not tell police that he was informed about the whereabouts of prosecutrix by his friend on 10.06.2013. He volunteered to state that since police had not helped him in any way in tracing out his daughter, he did not think that it was necessary to inform the police.
S.C. No. 113/13 : State vs. Parhlad : Page 5 of 25
7. The PW4, is the victim child K, but she has not supported the case of the prosecution at all and deposed that she was having a love affair with the accused and whatever happened had so happened with her consent. She further stated that accused had not induced and pressurized her to go along with him, rather she was the person, who had forced the accused to take her along with him, as she used to feel lonely at her parental home, after the death of her mother.
As the victim child did not support the prosecution case at all, she was cross examined by learned Addl. PP at length, but nothing favourable to the case of the prosecution could come on record. It was also brought out from her cross examination, that she had married with the accused on 31.01.2014 and that she did not want any action against him.
During crossexamination by learned Amicus Curie, the witness termed it correct that she had stated before ld. M.M that she had willingly accompanied the accused and married him and that her father was against their marriage as the accused belonged to a lower caste. She also termed it correct that she was residing happily with the accused and that on earlier occasion also, she had herself left her parental house without any enticement or pressure from the accused.
8. The PW5, Sh. Dharmender Singh, learned MM, had conducted the proceedings u/s.164 CrPC and proved the same as Ex.PW5/A to Ex.PW5/D i.e. the application filed by IO for recording of statement of victim/prosecutrix u/s.164 Cr.P.C as Ex.PW5/A ; statement of victim/prosecutrix u/s.164 CrPC as Ex.PW5/B ; the certificate given by PW5 as Ex.PW5/C ; and application for supply of copy of said statement, filed by IO, as Ex. PW5/D. S.C. No. 113/13 : State vs. Parhlad : Page 6 of 25
9. The PW6, HC Jitender Singh, handed over the copy of FIR, which was handed over to him (PW6) by the duty officer, after registration of the case, to ASI Surender at PP SGM Hospital and deposed regarding the same.
This witness was declared hostile and was crossexamined by ld. Addl. PP, wherein he termed it correct that IO had made inquiries from the complainant in his presence in the police post and that after discharging the complainant, he went with IO in search of the missing girl in the area and that despite inquiries made by the IO, there was no clue about the victim.
10. The PW7 Sh. Prashant Sharma, teacher, produced record from the MC Primary school, X Block, Mangolpuri, Delhi, wherein victim child/prosecutrix was admitted in first class. The PW1 proved copies of admission form and affidavit submitted by Smt. Kamla, mother of the victim child, as Ex. PW7/A and Ex. PW7/B, and stated that as per the school record, the date of birth of the victim/prosecutrix was 21.01.1996. The witness also proved the relevant entry in admission register qua the victim/prosecutrix as Ex. PW7/C and the original certificate issued by Principal of the said school as Ex. PW7/D. During crossexamination, the witness termed it correct that no MCD birth certificate of the child was submitted by her parents at the time of her admission in the school and that no independent verification of the date of birth of the child was got conducted by the school.
11. The PW8, Dr. Bina, had examined the accused and given opinion regarding his sexual potency vide MLC Ex. PW8/A and deposed regarding the same.
S.C. No. 113/13 : State vs. Parhlad : Page 7 of 25
12. The PW9 W/SI Suman Kumari, is the main investigating officer of the case and she deposed that on 10.06.2013, she was called to PP SGM Hospital to attend to a call of rape and accordingly, she reached at PP SGM Hospital, where PW13 ASI Surender met her and handed over the MLC of the victim as well as case file to her and also produced victim before her. She further deposed about recording of the statements of victim child and her father u/s 161 Cr.P.C, arrest and personal search of the accused and about recording the disclosure statement of the accused and proved his arrest memo as Ex. PW3/A, personal search memo as Ex. PW3/B and disclosure statement as Ex. PW9/A. She further deposed about seizing of the exhibits of the victim child vide memo Ex. PW9/B. She then deposed that about getting the accused medically examined through Ct. Laxman and about seizing of the samples handed over to her by Ct. Laxman vide memo Ex. PW9/C. She further deposed that on 11.06.2013, she took the accused to house no. B4/178, Sultan Puri, where he had kept the victim with him and that after getting the identity of the accused verified from the landlady, she prepared the site plan Ex. PW4/X of the house at the instance of accused. She further deposed about getting the statement Ex. PW5/B of the victim recorded u/s 164 Cr.P.C vide application Ex. PW5/A and about obtaining the copy thereof vide her application Ex. PW5/D. She further deposed that she got the exhibits of the present case deposited with FSL Rohini, through Ct. Vijay.
During crossexamination, PW9 termed it correct that she had collected the MLC of the prosecutrix and that after her recovery, the prosecutrix refused to go with her father. She further stated that the prosecutrix did not tell her the name of the temple, in which, she had got married with the accused. The witness further S.C. No. 113/13 : State vs. Parhlad : Page 8 of 25 termed it correct that Nawab Kaur, the landlady of the room, where the accused and prosecutrix stayed for 21/2 months, had told her that they lived there in the said room happily and peacefully.
13. The PW10, Dr. Ankur Jain, conducted general medical examination of the prosecutrix K, vide MLC Ex. PW10/A and thereafter, referred her to S.R. Gynae, for further examination and management and deposed about the same.
14. The PW11, W/Ct. Manju, had got the victim child K medically examined at SGM Hospital and deposed about the same. She further deposed that after medical examination of the victim child K, she handed over the MLC as well as exhibits taken from victim K, which were handed over to her by the concerned doctor, to PW9 W/SI Suman, who seized the same vide seizure memo Ex. PW9/A.
15. The PW12, Ct. Vijay, had taken the exhibits of the present case to FSL Rohini, vide RC no. 73/21/13 and deposed regarding the same.
16. The PW13, ASI Surender Kumar, had conducted the formal/part investigations in the present case and deposed regarding the same. He deposed that on 19.03.2013, on being assigned the investigations of the present case, he made search for the victim and the accused, but all in vain. He further deposed that on 10.06.2013, he received a call from ASI Satbir about detaining of victim and accused at PS Miyawali Nagar and accordingly, he along with L/Ct. Manju reached PS Miyawali and met the father of the victim, victim and the accused and brought them to PP SGM Hospital and that thereafter, he sent the victim to SGM Hospital for S.C. No. 113/13 : State vs. Parhlad : Page 9 of 25 her medical examination and informed PW9 W/SI Suman, who conducted further investigation.
17. After closing of prosecution evidence, statement of accused was recorded u/s 313 Cr.P.C, wherein he denied the allegations of the prosecution and stated that he was innocent and had been falsely implicated in the present case by the father of the victim/prosecutrix and that no such incident had ever taken place. He further stated that he had legally married prosecutrix, who was above 18 years of age, at Arya Samaj Mandir, Sector07, Rohini and that as the father of the prosecutrix was against their relations, he (father of the prosecutrix) got registered a false case against him. He further stated that he had also given proof of his marriage with the prosecutrix, to the IO. The accused wished to lead evidence in his defence and examined himself u/s 315 Cr.P.C as DW1.
18. The DW1, Parhlad (accused) deposed that he had legally married the prosecutrix at Arya Samaj Mandir, Sector07, Rohini, Delhi and that at the time of their marriage, the prosecutrix was above 18 years of age. He proved the certificate of marriage issued by said Arya Samaj Mandir as Ex. DW1/1 ; four photographs of the marriage as Ex. DW1/2 to Ex. DW1/5 ; birth certificate of the prosecutrix as Ex. DW1/6 (showing her date of birth as 21.01.1996) ; copy of marksheet of class XI of the prosecutrix as Ex. DW1/7 and copy of the Adhar Card of the prosecutrix as Ex. DW1/8.
During crossexamination by learned Addl. PP, DW1 stated that he had shown these documents to the IO also and had also given the MCD birth certificate of his wife to the IO, however, he failed to give any reason for late production of S.C. No. 113/13 : State vs. Parhlad : Page 10 of 25 these documents before the court.
19. To ascertain that the MCD birth certificate of the prosecutrix as produced by the accused in his defence and proved as Ex. DW1/6, is genuine or not, Ms. Renu Mann, Subregistrar (Birth & Death), MCD Office, Najafgarh Zone, was summoned and examined as CW1. The CW1 produced the summoned record and deposed that as per the record, a female child was born to Kamla (mother of the prosecutrix) wife of Site Ram r/o X212, Mangol Puri, Delhi, on 21.01.1996 and that intimation regarding the birth of the child was received at their office on 31.01.996, from one Kamla, mid wife (dai), who had also signed on the birth register. She proved the relevant entry in this regard in Birth register as Ex. CW1/A and original birth certificate as Ex. CW1/B.
20. Arguments have been addressed by learned counsel for the accused as well as learned Additional PP for the State.
21. Learned Additional PP has contended that in the present case, though the prosecutrix did not support the prosecution case, but it is proved on record that prosecutrix was a minor, less than 18 years of age, at the time of incident and as such, consent allegedly given by the prosecutrix is immaterial and that in view of the statement of the PW4 prosecutrix/victim child K as well as CW1, prosecution has proved its case beyond reasonable doubt against the accused under POCSO Act, and has accordingly prayed that accused be convicted for the charged offence.
S.C. No. 113/13 : State vs. Parhlad : Page 11 of 25
22. Learned counsel for the accused on the other hand has contended that prosecution has miserably failed to prove its case against the accused and that accused is innocent and has been falsely implicated in the present case by the father of the victim. He further stated that no such alleged offence was ever committed by the accused and that the entire prosecution case is based on false and incorrect statement of the father of prosecutrix, and it is thus prayed that the accused be acquitted of the charged offence.
23. I have heard the arguments put forward by ld. Addl. PP as well as learned Amicus Curie for accused Parhlad and have carefully gone through the record of the case. I have also carefully considered the evidence adduced by the prosecution in support of its case.
24. In the present case, accused is alleged to have kidnapped the victim K, a minor girl aged about 17 years, from lawful guardianship of her father on 19.03.2013, without the consent of the father of the prosecutrix, with an intention that she be compelled to marry him and is further alleged to have committed repeated penetrative sexual assault upon her from 19.03.2013 to 10.06.2013.
25. As far as the age of the victim K is concerned, the same has not been disputed by the accused. Even otherwise, in order to prove that victim K was a "child" less than 18 years of age as on the day of incident, the prosecution has examined PW7 Sh. Prashant Sharma, Teacher of MC Primary School, wherein the prosecutrix was admitted in first class on basis of admission form and affidavit submitted by her mother Smt. Kamla. As per record produced by PW7, the date of S.C. No. 113/13 : State vs. Parhlad : Page 12 of 25 birth of the victim K is 21.01.1996. Nothing could be brought out on record by the defence to create doubt regarding the genuineness and authenticity of record produced by PW7 which even otherwise was being maintained in regular course by the school.
26. Further, PW3 Sh. Sita Ram and PW4 victim K have also reiterated in their respective statements that the date of birth of the victim child K is 21.01.1996. Moreover, the accused has examined himself u/s 315 Cr.P.C as DW1 wherein, he produced the documents of his marriage with the prosecutrix, solemnized on 31.01.2014, and one of the document produced by him was MCD birth certificate of the prosecutrix i.e. Ex. DW1/6, wherein also the date of birth of the prosecutrix was mentioned as 21.01.1996. Pursuant to production of this document i.e Ex. DW1/6, the concerned Subregistrar was summoned from MCD Office and was examined as CW1. The CW1, Ms. Renu Mann, Subregistrar (Birth & Death) produced the summoned record and proved the relevant entry at serial no. 366 in the Birth Register in respect of victim child K, as Ex. CW1/A and original birth certificate as Ex. CW1/B, as per which, the date of birth of the victim child was found recorded as 21.01.1996.
27. From the testimonies of PW3 Sh. Sita Ram, PW4 victim child K and record produced by PW7 Sh. Prashant Sharma and CW1 Ms. Renu Mann, it stands proved beyond reasonable doubt that the date of birth of victim child is 21.01.1996. The date when victim K first went missing from her parents' house is 19.03.2013 and thus, computing her age, the age of prosecutrix comes to be about 17 years and two month as on the date of commission of offence and prosecution has S.C. No. 113/13 : State vs. Parhlad : Page 13 of 25 succeeded in proving that prosecutrix was less than 18 years of age (17 years and 2 months) as on 19.03.2013, when she went missing from her parent's house, she falls with the definition of "Child" as per provisions of the POCSO Act.
28. Coming to the issue of consent of guardian/father of the victim K, from the testimony of PW3 Sh. Sita Ram, father of the victim K, it is clearly brought out that since he has some inkling about relationship between the victim K and the accused, he suspected the accused of kidnapping victim K from the very initial stage. In fact, he has stated that even on earlier occasion i.e. on 30.10.2012, victim K had been kidnapped by the accused and was recovered on 31.10.2012, however, at that time, police did not record statement of PW3. The victim K also refused to accompany PW3 and was thus sent to Nirmal Chhaya by concerned CWC, from where, she was handed over in custody of PW3 on 09.11.2012, when victim K herself gave a call to PW3 and apologized to him for being influenced by accused and having gone with him. The PW3 also deposed about the manner, in which, victim K again went missing on 19.03.2013, on being enticed by accused to go with him, and recovery of victim K on 10.06.2013, after which, she never returned to her parental home with PW3, and continued to stay at Nirmal Chhaya. It is thus, apparent that PW3 Sh. Sita Ram, father/natural guardian of victim K never consented to relationship of accused with the victim K and victim K went with the accused and/or was kidnapped/enticed to go with the accused without the consent of her father/parents.
29. As far as, the prosecutrix/victim K is concerned, she has not said anything adverse against the accused and has accepted that she was consenting and willing S.C. No. 113/13 : State vs. Parhlad : Page 14 of 25 party to everything, that happened between her and the accused. In her statement u/s 164 Cr.P.C i.e. Ex. PW5/B, recorded on 11.06.2013, victim K categorically stated that she had gone with the accused on 19.03.2013 , as she loved him and that they both had got married of their own free will and consent and started residing at Sultan Puri, where they also had physical relations with consent and that she wanted to stay with the accused. These facts have been reiterated by the victim K in her testimony as PW4 before the court, wherein, she elaborated upon her statement Ex. PW5/B further and stated that she knew accused since last about four years and was having love affair with him. She further deposed that accused had not induced or pressurized her to go with him, rather it was she (PW4), who had forced the accused to take her with him, as she used to feel lonely at her parental house, after the death of her mother. The victim K also stated about having gone with the accused for the first time on 30.10.2012 and returning back on 31.10.2012, due to pressure created by her father. She further mentioned about being sent to Nirmal Chhaya and joining her father at her parental house on 09.11.2012. She, however, stated that she kept reminding her father that as soon as she turned 18 she would marry with accused Parhlad and in the mean time, she continued with her 12th class studies. The victim child K further deposed that on 18.03.2013, her father again raised issue of accused on which, she told him that she was still willing to live with the accused and that on hearing this, her father told her to pack her belongings, so that he could take her to the house of accused, but when her father, did not do so, victim child K herself left her parental house and went with the accused of her free will. The victim K then deposed that after two days, she came to know that her father had lodged a complaint with the concerned PS and that she had stayed with the accused for about two and a half months in a rented S.C. No. 113/13 : State vs. Parhlad : Page 15 of 25 accommodation at Sultan Puri, after solemnizing the marriage with him and that she had also established physical relations with him, with her consent.
Despite being put incriminating facts during her crossexamination by learned Addl. PP, the prosecutrix failed to depose anything against the accused and kept reiterating that she had voluntarily gone with the accused, married him and stayed with him as his wife.
30. Ld. Addl. PP has contended that since victim K was less than 18 years of age, as on the date, when she went missing from her house, her consent is immaterial and the prosecution is succeeded in proving the charges of kidnapping and repeated penetrative sexual assault against the accused.
31. As far as the allegations of kidnapping are concerned, it has been held in para 8 of judgment titled as Bunty vs. State (G.N.C.T.) of Delhi in Crl. Appeal no. 846/2009 decided on 16.03.2011 by the Hon'ble Delhi High Court that : "8. In this case, the prosecutrix had accompanied the Appellant voluntarily without any use of force exercised by him. It is not a case wherein he had taken the prosecutrix after enticing her. Prosecutrix had travelled with the accused to different places outside Delhi without raising any alarm or complaining to fellow passengers that she had been taken away by force. If a minor accompanies accused voluntarily without any offer or allurement then offence under Section 363 is not made out. ...."
32. It would also be relevant to refer to the case titled as " S. Varadarajan Vs. State of Madras (reported as AIR 1965 SC 942)", wherein while distinguishing S.C. No. 113/13 : State vs. Parhlad : Page 16 of 25 between " taking" and "allowing a minor to accompany a person" it has been laid down by the Hon'ble Supreme Court of India that : " There is a distinction between " taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it can not be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S. 361. Where the minor leaves her father's protection knowing and having capacity to know the full import of what she is doing , voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of her lawful guardian."
33. In the present case also, the element of 'taking away' or 'enticement' is found to be lacking. Rather from the material on record, it appears that prosecutrix was willing and consenting party and it seems that everything has happened with her sweet will. In these circumstances, the factum of kidnapping of prosecutrix does not stand proved.
34. The prosecution has failed to bring on record any incriminating evidence against the accused to prove charges of kidnapping and/or kidnapping with intention or knowledge that victim would be forced to have illicit sexual intercourse with accused or would be compelled to marry the accused. Accordingly, the accused is liable to be acquitted of the charges u/s 363/366 IPC in the present case and I hereby acquit the accused Parhlad from the charges u/s 363/366 IPC.
35. Now, so far as the offence u/s 5 & 6 of POCSO Act is concerned, it stands established from record that victim K was a minor at the time, when she established S.C. No. 113/13 : State vs. Parhlad : Page 17 of 25 physical relations with the accused and her consent for such a relation being immaterial for the purpose of provisions of POCSO Act and the accused is liable to be convicted for offence u/s 5 (l) of POCSO Act punishable u/s 6 of POCSO Act.
36. The nutshell of foregoing discussion is that I am of the considered opinion that the prosecution has successfully proved its case u/s 5 (l) of POCSO Act, against the accused beyond reasonable doubt and I, therefore, hold the accused Parhlad guilty u/s. 6 of POCSO Act and he is convicted accordingly for said offence.
Let the convict be heard on the point of sentence.
(Announced in the open Court ) (Illa Rawat)
(Today on 31.07.2014) Addl. Sessions Judge
(NorthWest)01
Rohini/Delhi
S.C. No. 113/13 : State vs. Parhlad : Page 18 of 25
IN THE COURT OF MS. ILLA RAWAT : ADDL. SESSIONS JUDGE
(NORTHWEST)01, ROHINI : DELHI
(Sessions Case No. 113/13)
Unique ID case No. 02404R0222852013
State Vs. Parhlad
FIR No. : 196/13
U/s : 363/366/376 (1), 2 (f) (n) IPC
& u/s 4 and 6 of POCSO Act
P.S. : Mangol Puri
State Vs. Parhlad
S/o Sh. Tara Chand
31.07.2014
Present : Ld. Addl. PP for the State.
Convict produced from J.C, with ld. Amicus Curie.
ORDER ON THE POINT OF SENTENCE
In the present case, the convict - Parhlad has been convicted u/s 5 (l) of POCSO Act punishable u/s 6 of POCSO Act.
I have heard the arguments on the point of sentence put forward by Ld. Addl. PP for State and Ld. Amicus Curie for the convict.
S.C. No. 113/13 : State vs. Parhlad : Page 19 of 25
2. It has been submitted by the Ld. Addl. PP that in the present case, convict Parhlad repeatedly, made physical relations with victim K, who was minor at the time of alleged relations, and in view of the serious nature of offence, the convict does not deserve any leniency and she prays that maximum sentence prescribed by the law may be imposed upon the convicts.
3. On the other hand, it has been submitted by the Ld. defence counsel that the convict Parhlad is a young boy and that he has already married with the victim and is living happily with her and that at present, victim is having five months' pregnancy. He further submitted that convict is a first time offender and is having clean antecedents and as such, it is prayed that these mitigating circumstances be considered and a lenient view may be taken in this case and convict be given a chance of rehabilitation by being released on probation.
4. I have carefully considered the submissions made by Ld. Addl. PP and Ld. Amicus Curie and have carefully gone through the record of the case.
5. The present case has peculiar facts and circumstances. It is brought out from record that victim K knew convict and was having love affair with him since about four years prior to the registration of the present case. After the death of her mother, victim K felt lonely and took refuge in her relationship with convict. She went away with the convict on 30.10.2012, however, before the father of victim K could get a case registered, victim K returned back on 31.10.2012. The victim K was aged about 16 years and 9 months at that time. Victim K initially refused to go with her father and was sent to Nirmal Chhaya, but later on, she returned to her S.C. No. 113/13 : State vs. Parhlad : Page 20 of 25 parental house on 09.11.2012. According to Sh Sita Ram, father of victim K, he brought victim K back to home on her assurance that she realized her mistake and would not repeat such an act in future. On the other hand, victim K states that though, she returned to her parental house, she repeatedly told her father Sita Ram that she would marry accused when she attained age of 18 years. It also appears from the record that on 19.03.2013, victim K again left her home to join the company of accused against the wishes and consent of her father. They even underwent some marriage ceremony, which in fact was without any legal sanctity, and started residing together as a marriage couple in the house of PW2 Nawab Kaur at Sultanpuri and continued to reside there till 10.06.2013, on which day, the victim K as well as accused were apprehended by the police. The accused was arrested in the present case. The victim K was also apprehended and had to be sent to Nirmal Chhaya, since neither victim K was inclined to return to her parental home, nor her father PW3 Sh. Sita Ram was willing to take her with him, in these circumstances. The convict was bailed out in the present case. The victim K turned 18 years old on 21.01.2014 and thereafter, she was released from Nirmal Chhaya. Convict and victim K got married on 31.01.2014 and presently, victim K is stated to be 5 months pregnant. Although, victim K was not of a legal age to give consent, her participation is evident in each and every act/offence committed by the convict. The victim K and convict nurtured their love for each other, denying all social norms, however, the nitty gritty of legislation i.e. POCSO Act 2012, which has come into force w.e.f November 2012, proved to be Achilles heel. Though, victim K and convict are now legally married, since victim K was a minor less than 18 years of age, at the time of commission of offence by the convict, the convict is liable to be sentenced to rigorous imprisonment for a term not less than ten years and said term S.C. No. 113/13 : State vs. Parhlad : Page 21 of 25 can even be extended to imprisonment for life, besides fine.
6. Learned Amicus Curie has prayed for consideration of mitigating circumstances and release of accused on period already undergone by him in custody.
7. I have carefully considered the submissions as well as gone through the relevant law on this point.
8. In case of Bachan Singh vs. State of Punjab, (1980) 2 SCC 684 it has been held that : "... As we read Sections 354 (3) and 235 (2) and other related provisions of the Code of 1973, it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of special reason in that context, the court must pay due regard both to the crime and the criminal. What is the relative weeight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case...."
9. Further, in Shankar Kisanrao Khade vs. State of Maharashtra, (2013) 5 SCC 546, the Hon'ble Supreme Court, while referring to the decisions in other case, summarized the mitigating factors and aggravating factors as : Young age of the accused, the possibility of reforming and rehabilitating the accused, the accused having no prior criminal record, the accused not likely to be a menace or threat or danger to society or the community, the accused having been acquitted by one of S.C. No. 113/13 : State vs. Parhlad : Page 22 of 25 the courts, the crime not being premeditated, the case being of circumstantial evidence, etc., are some of the mitigating factors indicated therein. The cruel, diabolic, inhuman, depraved and gruesome nature of the crime, the crime result in public abhorrence, shocks the judicial conscience or the conscience of society or the community, the reform or rehabilitation of the convict is not likely or that he would be a menace to society, the crime was either unprovoked or that it was premeditated, etc., are some of the aggravating factors indicated in the said decision."
10. In State of Uttar Pradesh vs. Sattan alias Satyendra and Others, (2009) 4 SCC 736, the Hon'ble Supreme Court had an occasion to consider the penological purpose of sentencing. To quote :
The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. ...
S.C. No. 113/13 : State vs. Parhlad : Page 23 of 25
11. The present case poses a complex issue before the court of balancing social interest on one hand and legislation on the other, which has necessitated giving a thoughtful consideration to request by learned Amicus curie to consider mitigating circumstances. The mitigating circumstances in the present case are :
(i) The convict is a young man aged about 25 years.
(ii) He does not have any previous criminal antecedents.
(iii) The victim K was emotionally and mentally inclined towards accused and sought his support even after death of her mother.
(iv) The convict apparently did not act out of lust to merely ravish the victim K, but stood by her to give her emotional support after the untimely death of her mother.
(v) Though, victim went with convict on 30.10.2012, the convict brought victim back on 31.10.2012 and thereafter, they both decided to wait for their marriage, till victim became 18 years old.
(vi) Though, victim K again went away with the convict on 19.03.2013, they first got married and then cohabited together, but unfortunately said marriage had no legal sanctity.
(vii) The convict waited for victim K to attain age of 18 years and then solemnized marriage with her at Arya Samaj Mandir, Sector07, Rohini, Delhi on 31.01.2014 and took her home with him. From 10.06.2013 to 21.01.2014, victim K stayed at Nirmal Chhaya.
(viii) The entire conduct of the convict shows that he wanted a long term relationship of marriage and companionship with victim K and not to take advantage of her vulnerability and strained relations with her father. S.C. No. 113/13 : State vs. Parhlad : Page 24 of 25
(ix) The convict never concealed any fact from the court, including the correct age of prosecutrix, and even the MCD birth certificate of the victim K was produced by convict, when he deposed as DW1, though the said document went against the convict himself.
(x) The victim K is now a legally wedded wife of the convict and is 5 months pregnant.
12. Keeping in view the facts and circumstance of the present case and taking into consideration the above mentioned mitigating factors, the request made by learned Amicus Curie is allowed and accordingly, I sentence convict Parhlad for the period already undergone by him in custody during the trial of the case, for the offence punishable u/s 6 of POCSO Act, which in my opinion, shall meet the ends of justice.
Copies of the judgment and order on the point of sentence be supplied to the convict, free of cost.
File be consigned to the record room.
(Announced in the open ) (Illa Rawat)
(Court on 31.07.2014) Addl. Session Judge
(NorthWest)01
Rohini/Delhi
S.C. No. 113/13 : State vs. Parhlad : Page 25 of 25